HIPAA privacy violation is not a Fourth Amendment or § 1983

Defendants’ alleged violation of HIPAA by disclosing medically private information did not constitute a violation of § 1983 or the Fourth Amendment. Urbina v. Carson, 2007 U.S. Dist. LEXIS 74890 (E.D. Cal. September 25, 2007):

The first issue is whether Plaintiff sufficiently alleges a constitutional deprivation. Plaintiff argues that he was deprived of his Fourth and Fourteenth Amendment rights.FN1

1. Plaintiff also argues that Defendants are in violation of Federal law because their conduct violates the “privacy rule” under the HIPAA 45 C.F.R. §§ 160.103, 164.502. He states that Carson’s telephone disclosures to Orner and Callanan were not authorized by HIPAA because Carson did not have Plaintiff’s consent. However, Plaintiff also recognizes in his opposition that there is no private right of action for damages under HIPAA but discusses the statute to “demonstrate that Plaintiff’s claims are not barred by California’s litigation privilege and that Plaintiff has stated a cause of action under 42 U.S.C. § 1983.” (Doc. 28, Opposition, n. 3.) Plaintiff offers no support for the proposition that a violation of HIPAA’s medical privacy rule implicates a recognized constitutional right for purposes of 42 U.S.C. § 1983.

. . .

Plaintiff does not allege any facts suggesting there has been an unreasonable search or seizure by Defendants. To the contrary, Plaintiff admits that Plaintiff himself subpoenaed the Medical Screening Form and provided it to Defendants as part of Plaintiff’s discovery obligations. Plaintiff cannot credibly suggest that he did not know that his medical records would be subject to scrutiny and discovery. He impliedly consented to the use of his medical records in this case. These records are highly relevant to the nature and extent of his injuries and damage claims. Plaintiff offers no law or argument that he had a legitimate expectation of privacy in the medical information that he voluntarily provided to the defense in this lawsuit; that he was legally required to provide; and that he put his medical conditions and the extent of his injuries in issue by the allegations of his complaint. Plaintiff also does not address this issue in his opposition. Plaintiff only alleges that Carson spoke to Callanan and Orner during the course of the Urbina I litigation about Plaintiff’s medical screening and medical condition. This is insufficient to show a Fourth Amendment violation. Neither does Plaintiff allege that either private defendants acted under the color of state law.